Upcoming Canadian Talks

Events at Calgary, McGill, and Queen’s

After my little tour of Western Canada in September, I am back for some more events.

I start tomorrow at the University of Calgary, with a discussion of section 33 of the Canadian Charter of Rights and Freedoms, a.k.a. the Notwithstanding Clause. While I can’t promise any new and brilliant ideas—I think everything that there is to say on section 33 has been said long ago—the issue has been, and is likely to remain, in the news, and there seems to be a good deal of interest in it, however puzzling I personally might find it. The event, organized by the Runnymede Society, is scheduled for 12 noon, at the Faculty of Law, in room MFH3320.

On November 21, at 1PM, Geoff Sigalet and I will be debating section 33 at McGill Law. Dr. Sigalet and I have done this before (on that occasion, alongside Joanna Baron and Maxime St-Hilaire respectively), but perhaps recent developments will add some interest to the discussion. This too is a Runnymede event.

Finally, on November 26, I will be at Queen’s, joining Grégoire Webber and Dr. Sigalet for a discussion on constitutional dialogue and Commonwealth constitutions, co-organized by Queen’s Law and Runnymede. This will take place in Queen’s Moot Court room (300) from 1 to 2:30PM. Constitutional dialogue isn’t exactly a novel topic either, but, for my part, I might have some news to report regarding a decision of the Supreme Court of New Zealand in the prisoner voting case, in which the Court of Appeal explicitly referred to the notion of dialogue, a decision on which I blogged here, and then published a paper questioning the relevance of the notion of dialogue in polities where the constitution is not the supreme law of the land.

I hope that some of my readers will be able to make it to one (or more!) of these events. As always, come say hi if you are there!

Bell/NFL: The Second Dunsmuir Redux Case

Two weeks ago, I summarized and analyzed the arguments in Vavilov, one of the Dunsmuir redux cases that will be heard at the Supreme Court in December. I’ll now do the same for the second case, Bell/NFL, which similarly focuses on an important conceptual difficulty in the law of judicial review: the presence and implications of a category of “jurisdictional questions.”

This case concerned an interpretation of the Canadian Radio-television and Telecommunications Commission [CRTC] of its own statute and regulations. The Appellants, Bell and NFL, claim that the interpretation raises a jurisdictional issue; the Respondent government resists this claim, arguing that the concept of jurisdictional questions inviting a different standard of review should be jettisoned. For reasons I’ve explained before, I do not think jurisdiction is a helpful category in the law of judicial review. All administrative law is confined to statute, and so whether an issue is “jurisdictional” or not is simply a function of an enabling statute.

The interpretive difficulty

The interpretive difficulty in Bell/NFL centres around the broadcast of the Super Bowl in Canada. For many years, the Super Bowl had been broadcast in Canada under the “simultaneous substitution regime,” set out in the regulations [Sim Sub Regulations] under the Broadcasting Act. Under the simultaneous substitution regime, a Canadian television station is required (unless the CRTC determines otherwise) to substitute a Canadian feed for a non-Canadian programming service—the result being that Canadians watching the Super Bowl see Canadian commercials whether they watch the Super Bowl on a Canadian or American channel (see Sim Sub Regulations, s.4(1))). The CRTC, under the Sim Sub Regulations, can apply an exception to the simultaneous substitution requirements if the “deletion and substitution are not in the public interest” (s. 4(3)). The CRTC can make this decision under s.18(3) of the Broadcasting Act, which allows it to make any decision “within its jurisdiction” if it is satisfied it is the public interest.

In this case, after consultations, the CRTC decided that the simultaneous substitution of Canadian content would no longer be in the public interest.  The key provision is s.9(1)(h) of the Broadcasting Act, under which the CRTC is entitled to require a licensee to “carry…programming services specified by the Commission.” Under this provision, the CRTC decided that it had jurisdiction under s.9(1)(h) to apply the exception to the simultaneous substitution regime in the public interest.

At the Federal Court of Appeal (a direct statutory appeal), Bell and the NFL argued that the CRTC “only has jurisdiction to make orders and regulations regarding programming services and does not have jurisdiction to single out an individual ‘program’” [15]. While the Broadcasting Act does not define programming services, the appellants argued that other provisions in the statute used the term “programming services” to refer to television channels. So, since the Super Bowl is a single show, the CRTC did not have “jurisdiction” under s.9(1)(h) to make the order it did.

The Federal Court of Appeal decided otherwise. First, the Court concluded that the standard of review is reasonableness, but rejected the “margin of appreciation approach” that the Court adopted in Vavilov [9].  It ultimately decided that the term “programming services” is contextual in nature; it could mean a single “program” (ie) the Super Bowl in certain circumstances [19]. A number of factors supported this conclusion: (1) previous interpretations of the CRTC held that the term was contextual [16]; the Sim Sub Regulations adopted the definition of “programming services” under the Broadcasting Distribution Regulations, which defined a “programming service” to mean a singular program [17]; while the legislative history demonstrated that “programming services” was used in reference to television channels, it was not determinative, and there was no evidence that the legislature intended to exclude a singular program from the term “programming services.” All of this meant that the CRTC’s decision was reasonable.

While there were other issues in this case, this core issue is the one that is most relevant to current debates in administrative law and judicial review.

The Parties’ Submissions on Standard of Review

Bell and NFL filed a factum each before the Supreme Court; Bell’s focused on the standard of review, while the NFL’s focused on the application of the standard of review to the issues in the case.

Bell’s factum reads as an attack on the administrative state. In the opening paragraphs of the factum, Bell notes that s. 9(1)(h) is juxtaposed with s.26(2) of the Broadcasting Act, which gives the power to Cabinet to require the broadcast of “any program.” This, to Bell, was the only provision of the statute that permitted the targeting of an individual program. This made sense—the Cabinet is “a democratically accountable body” [5]. And Bell does not pull punches, calling the CRTC’s exercise of power “Orwellian,” “conferring upon itself the ability to dictate the particular television programs that broadcasters distribute…” [5].

This assault on administrative power informs Bell’s standard of review proposal. To Bell, it is “inconceivable” that Parliament would have wanted the CRTC to have the last word on its own “jurisdiction” on this matter. To prevent this reality, Bell argues that a separate category of “jurisdictional questions” inviting correctness review is required. At risk are three principles: legislative supremacy, the separation of powers, and the rule of law [paras 42, 45, and 63-69]. When the fundamental question concerned “executive accountability to legal authority,” it would undermine the intent of the legislature to allow its creation to run beyond its statutory limits; the separation of powers is at risk if the executive could “decide for itself what powers were delegated to it by the legislature” [47]; and if the CRTC could single out a program when the statute expressly left that task to Parliament, the rule of law is impacted [69].

Without correctness review on “jurisdictional questions,” Bell alleges that we have an administrative state untethered to statute, making law as it goes along. And for Bell, even if the presumption of reasonableness was applicable, other statutory signals rebutted the presumption, including a statutory right of appeal [87-88].

The government, in its submissions, reiterated the focus on a general standard of deference for all administrative decision-makers that it set out in its Vavilov submissions and that I addressed in my previous post. It argues that the category of jurisdictional questions should be eliminated [34], and that the mere fact of delegation creates a presumption of deference [48]. To the government, there should be no search for other implicit signals of legislative intent to rebut this presumption.

Analysis

The Bell/NFL case gives the Supreme Court an opportunity to review its approach to that unicorn of judicial review, “jurisdictional questions.” In a forthcoming paper entitled “Two Myths of Administrative Law,” one of the myths I tackle is the idea of jurisdictional questions. In my view, both Bell and the government get this issue wrong. A category of jurisdictional questions (but not necessarily the concept of “jurisdiction”) is not helpful to the task of determining the standard of review; but neither is an always-applicable presumption of deference, which the government seems to believe necessarily follows from the rejection of the category of jurisdictional questions.

Starting at the beginning, Dunsmuir defined a true question of jurisdiction as one that concerned the decision-maker’s authority to make the inquiry in the first place [59]. This is, to be clear, is a very narrow sort of jurisdiction that can be distinguished from a pre-CUPE notion of jurisdiction. Under pre-CUPE law, every decision of an administrative decision-maker that runs afoul of its statutory boundaries could be considered as beyond its jurisdiction. Dunsmuir rejected this broad notion of jurisdiction.

But the Court has struggled with this conceptually difficult category. In subsequent cases, it has rolled back its application. In Halifax, it did away with the notion of “preliminary” or “entry” jurisdictional questions. In Alberta Teachers, a majority of the Court remarked that the category served little purpose. In CHRC, it reaffirmed the idea that a category of jurisdictional questions is unhelpful. Some spirited dissenters argue that the category is necessary, as Bell argues, to ensure that administrative decision-makers stay within their lawful boundaries (see also dissents in Guerin and CHRC).

I can understand the worry of the Court’s dissenters and Bell about the need to keep the administrative state in check. The real question is if meaningful checks and balances can be applied to a decision-maker by a judicial review court in absence of this category. To my mind, the answer is yes—but not under the current presumption of reasonableness, nor the extended version sought by the government in this litigation.

How is this so? In CHRC, the majority cited the City of Arlington case at the Supreme Court of the United States, per Scalia J. In that decision, a majority of the United States’ apex court rejected the idea that jurisdictional questions deserve a special, more intensive review than other questions of law. At the root of the argument for the category of jurisdictional questions, Scalia J reasons, is a misapprehension of the notion of “jurisdiction” in administrative law. For example, in Canada, s.96 courts have “inherent jurisdiction” that is constitutionally significant. This power to hear and decide cases is fundamentally different from the idea of administrative law jurisdiction—the jurisdiction of s.96 courts is constitutionally entrenched, whereas the jurisdiction of administrative decision-makers is defined by their statutes. This fundamental concept was described by the Court in Ocean Port, at para 23, with respect to independence. Constitutional guarantees of independence do not transfer over to an administrative decision-maker, even if they are requirements in the context of superior courts. While we would jealously guard constitutional independence, independence in the administrative context is completely different—it can be traded away.

The same is true of “jurisdiction.” In administrative law, the idea of “jurisdiction” is purely statutory. The power of a tribunal to hear and decide cases is circumscribed by statute, unlike in the s.96 context; so are the remedies that the decision-maker can grant, and whether a particular claimant can even have standing to challenge a particular decision. Whether the tribunal can act at all on a particular matter is a matter of statute. At the most extreme end, whether we have an administrative state to even review is a matter of statute. In a sense, everything and nothing is jurisdictional (Nolan, at para 33) because a decision-maker has no independent reserve of powers on which to rely outside the statute.

If one supports the idea that the level of deference owed to a decision-maker is a function of statute (which the Supreme Court does), then there is no reason to apply a different standard of review over questions going to the tribunal’s power to hear and decide cases, as opposed to its power, say, to grant a certain remedy. If a tribunal hears a case it is not statutorily empowered to hear, it is as much an affront to legislative supremacy and the rule of law as if the tribunal granted non-pecuniary damages when its enabling statute gave it no authority to do so. Both are instances in which the decision-maker has assumed power it has not been specifically assigned—and at heart, this is Bell’s fundamental concern with the CRTC’s action here. Nothing turns on the label of “jurisdiction.”

While the Court’s invocation of City of Arlington in CHRC supports the government, the Court doesn’t cite City of Arlington for its other, parallel proposition; that it is the job of courts to intensively police the boundaries of the administrative state, no matter the standard of review. For Scalia J, every case turns on the vigorous enforcement of statutory boundaries, not the artificial imposition of a particular category. And this is where Bell’s submissions are preferable to the government’s.  Under the government’s formulation of deference without an investigation of statutory signals, it is possible that a decision-maker could have (essentially) the last word on its statutory boundaries. This is not only problematic when we speak of the decision-maker’s power to hear and decide cases; it is a problem in every permutation of decision-making that could abridge the enabling statute. A judicial review court must review, and in our system of laws, this means determining whether there is any daylight between potentially correct interpretations of statutory language and what the decision-maker did in a particular case.

This case provides an example of how this could work in practice. In any given case, there should be two inquiries: (1) is the decision barred by the text, context, and purpose of the statute? (2) is the process of reasoning sound with respect to these principles of statutory interpretation?

On the first question, whether the term “programming services” can refer to the Super Bowl is a question of law. That means that a court reviews the text, context, and purpose of the statute—and the “open-textured” language therein—to determine the level of deference owed and whether the substantive result is legal. Here, the text is undefined in the statute, and is reasonably open-textured, meaning it could support more than one option. Sometimes, the tools of statutory interpretation require this result—there may be more than one answer. The context supports the CRTC’s interpretation and the breadth of options; the definition of programming services in the Sim Sub Regulations supports the CRTC’s decision. While I am alive to the concern that the Cabinet may have the power under s.26(2) to specify particular programs, that power seems to be of a different nature—based on the “urgency” of the program specified.  And even though a statutory right of appeal is present in the legislative context, that does not change the legality of the CRTC’s reasoning on the specific interpretive difficulty. Finally, the CRTC’s decision does not run counter to any of the Broadcasting Act’s purposes.

If I had my druthers, this is how we would deal with questions of law. There would be no presumption of “reasonableness.” Any deference is inherent in the language, the context, and the purpose of the statute. Here, the CRTC’s decision is not reasonable, or correct, but legal—it is supported by the tools of statutory interpretation and its process of reasoning is adequate (this point was not central). Nothing more or less.

Jurisdictional metaphysics, while interesting, is the province of lawyers. Bell/NFL provides an opportunity for the Court to get out of the game.

Twitter Blocking, Freedom of Expression, and Public Forums

Canadian legal twitter and podcasting celebrity Emilie Taman, along with a few other plaintiffs, have started a constitutional challenge in which they allege that Ottawa Mayor Jim Watson has violated their freedom of expression by ‘blocking’ them on his twitter account. As described by the Ottawa Citizen’s David Reevely:

When Mayor Jim Watson blocks people on Twitter he’s violating their constitutional rights, a trio of Ottawa activists says, and they’re going to court to try to make him stop.

The case is the first of its kind in Canada, says human-rights lawyer Paul Champ, who’s representing them…

[The Plaintiffs] all say Watson has cut them off from his Twitter feed after they’ve annoyed him. Which is not OK, they argue, because the mayor is a public official who uses his Twitter account for public purposes, to communicate public information and explain things he’s doing as Ottawa’s top civic politician.

The claim has raised some eyebrows. In particular, political scientist and constitutional expert Professor Emmett Macfarlane commented on twitter that “(i)f this [challenge] succeeds then rights don’t have any meaning anymore”.  Those are strong words, against which I want to push back a bit in this post.

I have not yet read the Plaintiffs’ statement of claim. But as I see it, the key to the argument is to view a public official’s twitter account, to the extent that it is regularly used as the account of a public official for public purposes, as a sort of “public forum”, from which individuals cannot be unreasonably or arbitrarily excluded.  It is something like this argument that was successful in the similar suit against Donald Trump, and it is the one I want to address here.

The idea of a public forum is a staple of US First Amendment jurisprudence. It recognizes that there are certain forums for expressive activity where it would be fundamentally contrary to a free society to permit the exclusion of individuals on the basis of the viewpoints they express. The basic idea was famously expressed by Professor Kalven in these terms:

[I]n an open democratic society the streets, the parks, and other public places are an important facility for public discussion and political process. They are in brief a public forum that the citizen can commandeer; the generosity and empathy with which such facilities are made available is an index of freedom.

Cited in Committee for the Commonwealth of Canada v. Canada, [1991] 1 SCR 139.

Different categories have since been created – traditional public forums (e.g. public parks, sidewalks, etc.), designated or limited public forums (e.g. university spaces or auditoriums used for public purposes), and non-public forums. In the US constitutional law context, these designations result in different degrees of scrutiny in terms of justifying a restriction on access, with access to traditional public forums attracting the highest level of scrutiny, and non-public forums attracting the least.

While the “public forum” analysis as such is a unique feature of US constitutional law, Canadian courts have grappled with similar issues, and reached similar conclusions. A few cases come to mind. In Committee for the Commonwealth of Canada v. Canada, certain individuals were prohibited from soliciting and leafleting in an airport that was government owned and controlled. There were six (!) sets of reasons, so I will not dare hazard a summary of the ratio of the decision. But suffice it to say that the Court held in favour of the leafletters, on the basis that the location was and should be available for expressive activities.

Perhaps more on point, in Greater Vancouver, the Supreme Court held that a public bus service that provided advertising space could not prevent individuals from advertising on the bus without a compelling section 1 justification. According to the Court:

The very fact that the general public has access to the advertising space on buses is an indication that members of the public would expect constitutional protection of their expression in that government‑owned space. Moreover, an important aspect of a bus is that it is by nature a public, not a private, space. Unlike the activities which occur in certain government buildings or offices, those which occur on a public bus do not require privacy and limited access… Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings. Thus, rather than undermining the purposes of s. 2(b), expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self‑fulfillment.

Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31 at para 43.

Canadian cases have extended this type of conclusion to other public forums, such as sidewalks and parks: see generally the cases cited in Bracken v. Niagara Parks Police, 2018 ONCA 261 at para 39-44. As Mr. Justice Miller put the point in Bracken, at para 49, in relation to a protestor in a public marketplace:

… Grandview Plaza is a place where people congregate and must expect to interact with others. That is precisely what made it an attractive destination for Mr. Bracken. Nothing that happens there requires quiet or an absence of distraction. Indeed, neither quiet nor the absence of distraction is even possible there. As in Greater Vancouver,

[u]nlike the activities which occur in certain government buildings or offices, those which occur [in the Parks] do not require privacy and limited access … Like a city street, [the Parks are] a public place where individuals can openly interact with each other and their surroundings (Greater Vancouver, at para. 43, emphasis added).

The point of these cases is not that one has a “right” to advertise on buses or to access any other particular “platform” for expression, as standalone proposition. The point is rather that if the Government creates expressive opportunities ostensibly open to all, it cannot unreasonably or arbitrarily prevent individuals from using those opportunities.  In my view, we should be particularly concerned when they do so to suppress certain messages they find distasteful generally, or critical of the public official or government entity specifically.

Is a public official’s twitter account properly considered a public forum of some sort, such that some degree of constitutional scrutiny should apply where individuals are excluded from participating in that forum? I think there are good reasons to say it should be.

First, blocking an individual from seeing and responding to tweets in the twitter thread created by the public official deprives that individual of their freedom to express themselves in a particularly important way, in a particularly effective forum, and moreover, in a forum explicitly designed for those types of communications. The critical importance of unfettered speech on issues of public interest, and speech critical of public officials and government in particular, is too widely accepted to warrant a citation, but here’s one anyway:

“The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule.  The liberty to criticize and express dissentient views has long been thought to be a safeguard against state tyranny and corruption.

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 SCR 480 at para 18.

Second, and relatedly, blocking dissenters prevents many other twitter users from seeing the critical or other commentary of the speaker in this uniquely effective forum, and engaging with that commentary in turn. As the Court has recognized, freedom of expression protects “listeners as well as speakers”, and we should be wary of state action that interferes with either (see e.g. Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 766-67; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at 1339-40).

In my view, curating a twitter feed to effectively block dissenting or critical voices, in an open and public venue perfectly compatible with such reactions and commentary, undermines both of these important constitutional values.

It is in my view not an adequate response to say that the blockee could create a new twitter account, and therefore could still read the tweets of the blocker. While this is true, it is not responsive to the unique constitutional harm engaged. To me, the harm is not that the individual cannot read the statements or commentary of the public figure, but rather that they cannot express themselves and participate in an especially critical forum created by that public official, i.e., the very twitter feed in which the public announcement or statement is made. The inconvenient workaround of creating a separate twitter account to view the statements does not solve the problem of the arbitrary exclusion from the public forum designed for expression and debate, and the uniquely important expressive opportunities that the public official has created.

All of which is to say that I think there is a strong argument, grounded in existing constitutional law and in the fundamental purposes of freedom of expression, for considering a publicly available twitter account used for public purposes by a public official to be the type of forum in which restrictions on access may deserve constitutional scrutiny. The more twitter and other social media accounts become the predominant method for communications with and interactions between elected officials and their constituents, increasingly in preference to stump speeches and news conferences of previous generations, the stronger this argument becomes.

Although other analogies to a public official’s twitter feed have been floated, the most persuasive from my perspective would be the making of a government announcement on a public street or a public park, or in a government owned or rented building or auditorium made open to members of the public generally.

In those circumstances, I think we would consider it a rather intolerable intrusion on freedom of expression and assembly if the public official, at a function ostensibly available to all members of the public, sent around police officers or security guards to evict those do not seem to support the public official or their message. This would not only trammel upon the freedom of expression of the excluded dissenters, but would deprive listeners and viewers of being exposed to contrary viewpoints. Perhaps as concerning, from my perspective, the process of regularly blocking dissenters while permitting supporters to access the forum creates the false impression of unanimous support for the public official’s statement in the forum in which that statement is made. This is of course a common tactic in certain regimes, but not one normally seen in free and democratic societies.

Yes, in such situations – as in the context of a twitter blocking – the individuals excluded from the public venue can express themselves elsewhere. You can go down to another public area or find a private one, where no one is actually located to hear your message (a free speech zone, perhaps?). But in my view, that does not eliminate the constitutional issue. The key feature and logic of public forums is that they create a particularly effective venue for expressive activities, both in terms of a larger audience generally, and in terms of reaching an audience who have an interest in the public official or the content of their speech. Saying that an individual is free to express themselves in this uniquely effective forum if they support the public official, and in other far less effective forums if they do not, does not seem to address that concern.

And contrary to Professor Macfarlane’s view, I think there is a principled basis to say that ‘muting’ does not raise the same constitutional issues. That is because muting does not prevent individuals from accessing and participating in this modern public forum, nor does it prevent anyone else from benefiting from their commentary in that same forum. The point is not that you have a right to be listened to by public officials or anyone else, but rather that you cannot be unreasonably excluded from public forums made available for that purpose. Thus, muting strike me as the rough equivalent of a public official who decides to give a speech or hold a public event that permits dissenting voices, but then averting their eyes from critical signs or ignoring contrary speech within earshot. That is ok.

Public officials can of course avoid this issue entirely, by not creating the public or quasi-public forum in the first place. They can create a ‘private’ or ‘protected’ twitter account, for instance, in which they screen and only accept followers and commenters who support their viewpoint, and curate that list as aggressively as they like. This would be like holding an exclusive private event or conference limited to party members, in which property rights are used to exclude those from the conversation that the public official does not want interact with or hear from. In other words, it would not be a “public” and open forum at all, but a “private” and exclusive one.

However, having chosen to create or utilize a public forum to reach and engage with the widest possible audience, and at least ostensibly making it open to all to hear the views of the politician and express views in return, it strikes me as constitutionally problematic for a public official to require that forum, which they exclusively control, to be used only to praise and cheer the public official, and not to criticize or question her or him.

Finally, I would add that it does not strike me as problematic to block twitter users whose commentary can be properly characterized as threatening, abusive, harassing, or unduly disruptive, just as such individuals could be excluded from a more traditional or designated public forum for those reasons. But that would be a reasonable justification for a restriction on speech, not a justification for taking it outside of the constitutional arena altogether.

There are of course many potential wrinkles here. It may be difficult to determine whether a public official has created and used a twitter account for public or private purposes, and what to do if it is a little of both. There are also practical obstacles that the claimants may need to traverse, such as a Court’s fear that giving effect to the constitutional arguments in this context will create a flood of twitter litigation. A court might even reject the premise altogether, and treat a public official’s twitter feed as less the “online equivalent of government property”, as Andrea Gonsalves and Justin Safayeni have described it, and more the online equivalent of an personal diary, over which the official has and should have absolute discretion.  As with any novel case, I’m sure there are plenty of other issues that will need to be hashed out, and at the end of the day, Professor Macfarlane’s doubts may be vindicated. But the claim strikes me as being perfectly viable from a constitutional law perspective, even if it is not ultimately successful.

I will conclude with this.  For all its incurable faults, the great promise of social media is that it can open up new and uniquely democratic forums for public engagement, including public dissent and criticism. Unlike public speeches that are only available to those living nearby, or news releases and no-questions press conferences that are decidedly unidirectional, twitter creates a forum for constant engagement, debate, interaction and feedback. It provides citizens – particularly those with relatively little political, economic or social power – a meaningful opportunity to have their views broadcast and heard, in nearly equal measure to the public figures they support or denounce. In my view, excluding people from that conversation on the basis of their political opinions or substantive viewpoints, in a modern forum designed deliberately for the purpose of fostering that type of dialogue, is worth scrutinizing through a constitutional lens.

Oliphant on the Constitutionality of Twitter Blocking

Announcing an upcoming guest-post

My friend, co-author, and occasional guest here Benjamin Oliphant will be back soon to give us his perspective on a constitutional challenge to Ottawa Mayor Jim Watson’s blocking of citizens on Twitter. This is a novel case in Canada ― though American citizens have succeeded, for now at least, in a similar one involving Donald Trump’s Twitter feed ― and I am very much looking forward to Mr. Oliphant’s thoughts on it.

 

The Dead Intent of the Framers

The tragedy of Doug Ford looks less like a tragedy after all, with the Court of Appeal for Ontario staying the decision of Justice Belobaba that ruled Ford’s planned council cut unconstitutional. The use of the notwithstanding clause is off the table, for now. But it would be hasty to move on too quickly. How academics and lawyers spoke about the planned use of the notwithstanding clause provides a window into how we justify and critique the use of state power.

For example, some 80 law school faculty across Canada came out against the Ford government’s planned invocation  of s.33 of the Charter of Rights and Freedoms in an open letter. The faculty, relying on a strong-form version of originalism (original intent, long outdated as a form of originalist reasoning), argue that Premier Ford transgressed the intention of the Charter’s framers:

The framers of the Constitution included the notwithstanding clause as a compromise to achieve consensus. But, they firmly believed that the notwithstanding clause would only be used in exceptional circumstances. This has indeed been the case since the Charter’s enactment in 1982.

If the excerpt above seems an insignificant part of the letter, the faculty use the original intent of the (yet undefined framers) to define a political norm that governs the frequency of use of the notwithstanding clause.

In 36 years, the notwithstanding clause has rarely been used. Liberal governments, NDP governments and Conservative governments at the federal and provincial levels have all been extremely reluctant to use the notwithstanding clause. Faced with judicial decisions declaring legislation unconstitutional, governments in Canada have sought alternative ways of bringing their laws into compliance with the Charter. This is precisely what the framers of the Constitution had hoped and predicted. The notwithstanding clause was only to be used in the most exceptional circumstances.

The faculty, to their credit, do not attack the legality of Ford’s planned use of the notwithstanding clause. So long as the form requirements are met, the notwithstanding clause can be invoked. Rather, they seek to define, using framers’ intent, the political boundaries that should govern this extraordinary power.

At first blush, I agree that the invocation of the notwithstanding clause should be subject to political norms and should be critically examined by citizens. There should be a justification of the use of the notwithstanding clause. This is different from the sort of legal restriction on statutory decision-making explained in Roncarelli v Duplessis. In an administrative law sense, state power is subject to the law, and the exercise of powers contemplated by statute are controlled by that statute.  That analogy is ill-fitting for a power unrooted to statute that exists in the text of Constitution itself. Nonetheless, one can meaningfully argue that a political norm of justification should accompany the use of the override. As I’ve said in this space before, Premier Ford has failed on this score.

The interesting part of the faculty letter, though, is not the substantive argument. Rather, it is the analytical footpath. The faculty seek to call up the live hands of Jean Chretien et al who “framed” the Charter to support their point of view. In fact, Chretien, former Ontario Attorney General  Roy McMurtry, and former Saskatchewan Premier Roy Romanow (the individuals who bartered the notwithstanding clause into the Charter through the famous Kitchen Accord) have come out to say that  the notwithstanding clause should only be used “in exceptional situations, and only as a last resort.”

It is surprising that a fairly large contingent of the Canada law professoriate endorse the proposition that the intent of the framers should mean anything in this case. Others have written about the problems with original intent originalism—determining the class of relevant “framers,” determining how to mediate between different intents among these “framers,” determining the level of generality at which intent is expressed, and the list goes on. These practical problems underline a broader theoretical problem–why, in a normative sense, should the views of Jean Chretien et al bind us today? How can we be assured that these “framers” are speaking on behalf of the meaning adopted by Parliament and the legislatures?

Even if we should accept that this intent leads to the acceptance of the relevant political norms, there is no evidence offered in the letter that other potential “framers” of the Charter shared the view of Chretien, Romanow, and McMurtry as to the use of the notwithstanding clause. For example, Brian Peckford (former Premier of Newfoundland who apparently presented the proposal of the provinces to Prime Minister Trudeau), wrote a piece arguing that Premier Ford’s use of the notwithstanding clause was perfectly appropriate. He made no mention of any understanding or political commitment on the part of any other Premiers or parties as to the expected use of the notwithstanding clause. In this sense, the framers’ intent means nothing; it is dead in terms of helping to interpret even the political norms surrounding the use of the notwithstanding clause.

This is a dangerous form of originalist reasoning adopted by the faculty, and should be used sparingly with appropriate caution. It is open to abuse. Lawrence Solum argues that theories of originalism have two features (1) fixation and (2) constraint. That is, the meaning of a constitutional provision is fixed at the time of framing; and in terms of original meaning originalism, the original public meaning of the constitutional text constrains the constitutional practice of courts. To my mind, the sort of originalism relied on by the faculty fails to both fixate and constrain constitutional meaning, precisely because there is at least an open question as to the expected legal and political practice of the notwithstanding clause. There is even a question as to who should fit into the relevant class of framers, and who should not. In this sense, the form of originalist reasoning invited by the faculty is not, in substance, different from living tree constitutionalism—unfixed and unconstrained. It is an invitation to dress up the desired political outcomes of its proponents with the imprimatur of a legal doctrine.

Putting aside the faculty focus on political norms, if framers’ intent is accepted as an appropriate doctrinal model, the debate in courts will focus on which particular framers support one side of a case or another. Will some lawyers introduce affidavit evidence from Jean Chretien? Another side, Brian Peckford? Rather than focusing on the meaning of words in their context—their original meaning—framers’ intent will incentivize lawyers to spin historical tales, told through the intent of those whose view may not actually represent the state of the law.

That said, we shouldn’t bristle at the opening provided by the faculty. There is, perhaps for the first time, a willingness to accept forms of originalism. If the faculty intended to fix the constitutional political practice of the notwithstanding clause at the time of framing, that intent is better vindicated by original meaning (to the extent it can be discerned) precisely because it fixes and constrains. Of course, a rational person would rather bet on a system of rules that prevents political hijacking of legal interpretation, because political power can be wielded in any direction. A safer gamble—a better methodology—is a form of doctrine less amenable to political reasoning. Given the faculty acceptance of some model along these lines, I look forward to seeing how a focus on fixation and constraint can influence other areas of the Charter.

Upcoming Events

Talks and discussions in Saskatoon and Edmonton

This is just a quick note to let readers know about some events this coming week.

First, on Monday, I will give a talk on “The Supremacy of That Which Is Highest and Best in Man” ― or, in other words, freedom of conscience ― at the University of Saskatchewan College of Law. The event starts at noon in Room 150. It’s organized by the Runnymede Society ― for whom I already spoke on this issue a couple of years ago. Of course, much has happened since then; the demands various branches of the Canadian state make on the conscience of those subject to their respective jurisdictions have only expanded. As Lord Acton noted in the same lecture on the Beginning of the Modern State from which the title of my talk is drawn, “[t]he passion for power over others can never cease to threaten mankind, and is always sure of finding new and unforeseen allies in continuing its martyrology”. In my talk, I will both discuss the unchanging nature and claims of conscience itself, and touch on the most recent attacks on it in Canada.

On Wednesday, I will be doing another Runnymede event, this one a discussion entitled “‘Dirty word’ or dirty little secret: originalism in Canada”, at the University of Alberta. This will also start at noon, in LC190. The event’s title is recycled from a Runnymede talk I once gave at the Université de Montréal, but the idea here is to have a conversation on constitutional interpretation ― and why it’s not all as simple as the purveyors of the living tree mythology would have you believe. Despite setbacks, such as the Supreme Court’s decision in R v Comeau, 2018 SCC 15, this is an exciting time to be an originalist in Canada. Between scholarship by more or less subversive-minded people such as yours truly, and the accessible publication of materials related to the making of our constitution both online (notably by the Primary Documents project) and in dead-tree form (that is, Adam Dodek’s The Charter Debates), the dead constitution is alive and kicking.

Finally, on Thursday, I will be taking part in a panel discussion with Howard Kislowicz and Jennifer Raso called “Dissecting TWU“, organized by the Centre for Constitutional Studies. This one starts at 5:30PM in Howie McLennan Ross Hall. Between the three of us, we will, I believe, cover many of the important aspects, both constitutional and administrative, of the recent Trinity Western dilogy (and in particular of Law Society of British Columbia v. Trinity Western University, 2018 SCC 32). For my own part, I will focus on the way in which the Trinity Western decisions expand the powers of administrative decision-makers, allowing them to appoint themselves as enforcers of “human rights” and constitutional obligations against those who were never supposed to be bound by them.

I am looking forward to these events, and am grateful to those who have helped organize them ― especially Joanna Baron at the Runnymede Society and Patricia Paradis at the Centre for Constitutional Studies. If you can make it, please come, and say hello. It’s always great to meet readers of this blog.

 

Girouard v CJC: An Administrative State Coup?

The administrative state is not a constitutional mandate

A few weeks ago in this space, I mooted the arguments that could stand against the constitutionality of the administrative state. I alluded to an argument—percolating in Canada—that the administrative state could be mandated by the Constitution. I wrote this piece in a fully hypothetical mindset. But I forgot about a case in the Federal Court, Girouard v Canadian Judicial Council, in which the Canadian Judicial Council [the CJC] essentially attempted to constitutionalize its status as a statutory administrative tribunal by making it beyond judicial review. The Federal Court thankfully rebuffed the argument.

First, the brief facts. The CJC is a statutory body that has authority to review the conduct of federally appointed superior court judges. The CJC is made up of 39 members—chief justices, associate chief justices, and other senior judges—and is chaired by Chief Justice Wagner.

When a complaint is made against a member of the judiciary, the CJC has authority to investigate. It could do so through an Inquiry Committee [IC]. According to the Judges Act, which governs the CJC, the CJC may appoint an IC consisting of its membership or members of the bar of a province having at least ten years standing (s. 63(3)). After the inquiry has been completed, the CJC will report the conclusions and make recommendations to the responsible Minister (s.65).

Two inquiries were completed in the case of Justice Girouard, a judge of the Quebec Superior Court. In 2012, Justice Girouard was caught on a video that allegedly showed him involved in a drug deal. The CJC was asked to review Justice Girouard’s conduct. The first inquiry rejected the allegations against Justice Girouard, but raised concerns about the credibility and reliability of the facts reported by Justice Girouard. The CJC accepted the conclusion of the IC. In 2016, the Minister and Minister of Justice of Quebec filed a joint CJC complaint regarding Justice Girouard’s lack of credibility during the first IC. A second IC was convened, which found that Justice Girouard was not forthcoming during the first inquiry process. The CJC accepted that conclusion in its recommendation report to the Minister. In the main judicial review, Justice Girouard challenged the IC report to the CJC and the CJC report to the Minister, among other decisions.

The case here was a motion to strike brought by the CJC, which essentially argued that the CJC was a superior court, and not a federal board, commission or tribunal subject to judicial review under the Federal Courts Act. To the CJC, the Judges Act expressly notes that the CJC is “deemed” to be a superior court. Apart from the Judges Act, the CJC also argued that judicial independence as a constitutional principle compels the conclusion that the Federal Court has no authority to review the CJC, composed as it is of s.96 judges. The Federal Court rejected these arguments, concluding that the CJC is a statutory federal body subject to judicial review under the Federal Courts Act. Relatedly, the Federal Court concluded that the CJC does not possess the traditional indicators of a superior court, despite the fact that its membership is drawn from the ranks of s.96 judges.

The legal arguments presented by the CJC, to my mind, are problematic on three fronts: the implication of the CJC’s argument runs into problems at the level of fundamental principle; second, on specific legal points; and third, on the context in which this decision was made.

The first issue: if we accept the CJC’s argument, we can conclude that at least some of the administrative state is constitutionalized, simply because a s.96 judge (acting non-judicially) is on the committee. This is because the CJC argues that it is superior court, unreviewable without a right of appeal, despite being a body created by Parliament. Specifically, the CJC argues that the Federal Court cannot review the CJC because it does not fall into the definition of a federal board, commission, or tribunal in the Federal Courts Act. According to the CJC, this seems to be for two reasons: (1) because, properly interpreted, the definition does not encompass s.96 courts and (2) a principle of judicial independence precludes the Federal Court from exercising review over s.96 judges.

Both arguments run into what I call the fundamental principle of all administrative law: its statutory character, open to amendment or rescission at any time by the legislature. Tomorrow, for example, Parliament could remove the Immigration and Refugee Board, because the Constitution does not require the maintenance of a body to process refugee applications. We would revert to a pre-administrative law world, in which the executive (the responsible Minister) would process humanitarian and compassionate applications, for example. Put differently, and except in defined circumstances (such as those in Vriend, where Parliament has already spoken on a matter), the Constitution does not ordinarily require a legislature to positively act, much less to establish a robust administrative state. If the CJC is not open to judicial review under the ordinary channels, its actions are insulated from review, taking on a constitutional character. In the ordinary course, we would reject this argument—both on principle and because the Supreme Court has said that Parliament cannot establish s.96 courts (Crevier).

Why does this matter? While the CJC did not expressly argue this, its argument implites that the CJC can be put beyond review. An administrative actor created by statute should never be put beyond review, new-fangled theories of “constitutional structure” and administrative law constitutionalism notwithstanding. In constitutional democracies, government power must be subject to law. This means a neutral arbiter must determine if government properly exercised power according to law–the Rule of Law, at the very least, encompasses this principle of legality. If an administrative decision-maker, no matter the rank of its members or their august titles, is put beyond review, we approach a government by executive fiat and prerogative, not a government of laws adopted lawfully.

I see this case as an extreme example of the modern trend of administrative law: towards more regulation and more administrative decision-makers that have court-imposed “unlimited” powers (see West Fraser, at para 11). Once we accept even one instance of such a decision-maker, vested by statute, we have to conclude that no court can speak ill of that “unlimited” decision-maker. Obviously this has profound effect on the Rule of Law, individual liberties, and due process. Take this case–dissenting members of the CJC were concerned that certain anglophone members of the CJC could not evaluate the entire record, which was in French. This implicates the fairness of the process for Justice Girouard. A purpose of judicial review is to ensure this basic fairness, but if we make administrative decision-makers beyond reproach, we sit them alongside the basic law of the land–the Constitution. And of course, legislative bodies acting alone cannot establish new constitutional provisions.

The only wrinkle in the Girouard case is the membership of the CJC—in part, s.96 judges. A principle of judicial independence does require some separation between the judicial branch and the other branches of government. Resting on this, the CJC argued that s.96 judges—whenever acting in any capacity—exercise powers as a member of a court of inherent jurisdiction. But the CJC is established not as a loose confederacy of s.96 judges acting in a judicial, adjudicative role, deciding individual cases and applying the law. This is the hallmark of the judicial function (see Residential Tenancies at 743). Rather, it is established as a statutory investigatory institution, vested with powers only so far as the statute allows. The CJC has no other inherent power—no constitutional power to vindicate a right with a remedy—and has no supervisory jurisdiction, other powers typical of a superior court. It is acting only as a sort of self-governing professional body for judges, according to the terms of the statute. In absence of any exercise of a judicial function, and given the statutory basis of the CJC, there’s no reason to believe that the CJC should be constitutionalized as a s.96 court simply because, in another capacity, members of the CJC exercise judicial functions–notwithstanding the specific facts of the Supreme Court’s comments in Ranville (distinguished by the Federal Court).

In fact, the implication of the converse is absurd. The CJC stands and falls as a whole–as an institution. As I note above, the CJC ICs, for which the CJC sought immunity from review, is in part made up of s.96 judges. But the ICs can also include members of the bar of 10 years standing. The CJC’s argument implies that this does not matter so long as there are s.96 judges on the IC, the IC and the CJC together exercise s.96 functions, acting as members of a court of inherent jurisdiction. This sets up an interesting set of incentives. In order to make statutory bodies immune from review, Parliament could set administrative decision-makers composed in part by s.96 judges—perhaps composed of just one s.96 judge among other lawyers. On the CJC argument, this body would be beyond review without a right of appeal. Parliament could use the Constitution to game the fundamental principle of administrative law.

The real question is whether judicial review by the Federal Court infringes the judicial independence of a s.96 judge. Judicial independence has some textual mooring (ss. 96-100 of the Constitution Act, 1867 and s.11(d) of the Charter), but it is an “unwritten constitutional principle,” which guarantees “administrative independence, financial security, and security of tenure” (Provincial Judges Reference, at para 118). The CJC says that security of tenure is at stake, as removal of a judge requires an impartial process. The Court in the Provincial Judges Reference said something similar regarding financial security, but I am not sure the same result is compelled in these circumstances. It is not as of the Federal Court is some government administrative body that could allow the executive to interfere in the workings of the CJC—thus breaking the wall that should be set up between judiciary and executive. The Federal Court is itself independent. In the ordinary course, again, constitutional principles do not compel a particular legislative process or system. It simply requires a reality; that judges and executive/legislatures be separate.

Finer legal points also work against the CJC (though I note the CJC’s very sophisticated statutory analysis-see the factum below). The CJC argued that it is not subject to review in the Federal Court because the Federal Courts Act expressly excludes s.96 judges—and the power of the CJC is rooted not in a federal law (the Judges Act) but in a constitutional principle. The CJC says that if the Judges Act were removed tomorrow, the authority of the judiciary to investigate other judiciary members would remain. Again, on this I recoil instinctively. The CJC makes decisions as an institution—this the CJC recognizes. That institution, separate from its individual members, is created by statute. The Judges Act is one statutory manifestation that implements the principle of judicial independence, but is not the only one and perhaps not even the best one.

The CJC also points to s.63 of the Judges Act, which says that the CJC is deemed to be a “superior court.” In written argument, the CJC spends a lot of time discussing this deeming provision. I’m alive to the idea in statutory interpretation that a deeming provision creates a virtually irrebuttable legal fiction, but an unconstitutional statutory provision (deeming or no) cannot stand. An attempt by Parliament, through a deeming provision, to establish a s.96 court runs into constitutional problems on federalism grounds and on the Crevier grounds noted above. Even if this was not so, the particular deeming provision in this case is similar to ones that exist in other statutes. For example, the Canadian Transportation Agency similarly has “…all the powers, rights and privileges that are vested in a superior court” (Canadian Transportation Act, s.25). Yet no one argues that this provision alone grants the Canadian Transportation Agency the power to act as a superior court beyond powers pertaining to the procedures of the Court.

Finally, the context of the decision indicates that the CJC is aware of its statutory character. As noted by Paul Warchuk, the CJC tried once—the right way—to amend the Judges Act to make itself immune from review. A few years ago, the Minister of Justice sought recommendations on how to amend the Judges Act. The CJC recommended at that time that it be put beyond the ordinary judicial review procedure, subject only to an appeal to a statutory appeal body.

The CJC failed in these efforts, which basically mirror its submissions in Girouard. But implicit in this attempt is a recognition by the CJC that it is a statutory body subject to review by the Federal Courts system like any other federal body. After all, Federal Court judges are superior court judges (see s.4 of the Federal Courts Act, which establishes the Federal Court as a “superior court of record”). I’m not sure what changed between this recognition of its status and the Girouard case.

Overall, while counsel for the CJC argued the best case it could and ably so (whatever my opinion is worth), I’m less inclined to support the argument because of its implication: a further extension of the administrative state into unknown terrain. The coup failed this time, but as I’ve written elsewhere, the administrative state is a fickle bedfellow.

NB: To be fair, I’ve attached the CJC’s submissions below. Thanks to Alyssa Tomkins, counsel for the CJC, for sending them over.

Mémoire CCM